King v. Director, TDCJ-CID

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
T ERRY W AYNE KING , II,
Petitioner,
v. 	No. 4:25-cv-1254-P
E RIC GUERRERO , DIRECTOR ,
T EXAS D EPARTMENT O F
CRIMINAL J USTICE-C ORRECTIONAL
I NSTITUTIONS D IVISION ,
Respondent.
OPINION AND ORDER
Before the Court is the petition of Terry Wayne King, II, under 28
U.S.C. § 2254. Having considered the petition, the response, the record,
and applicable authorities, the Court concludes that the petition must
be DENIED.
BACKGROUND
Petitioner is serving two concurrent life sentences following his
convictions in Case No. 1588183R in the 371st District Court, Tarrant
County, Texas, for injury to a child causing serious bodily injury and
attempted aggravated kidnapping. ECF No. 14-71 at 6–9. He appealed,
the convictions were upheld, and the case was remanded for a new
punishment hearing because the appellate court determined that the
trial court had erred in denying a motion to suppress photographs
containing child pornography during the punishment phase of the trial.
King v. State, 650 S.W.3d 241 (Tex. App.—Houston [1st Dist.] 2021),
aff’d in part, 670 S.W.3d 653 (Tex. Crim. App. 2023). The Court of
Criminal Appeals of Texas (“CCA”) granted the State’s petition for
discretionary review and reversed the appellate court’s decision as to the
suppression issue, thus affirming the trial court and upholding the
sentences. King, 670 S.W.3d 653. The United States Supreme Court
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denied the petition for writ of certiorari. King v. Texas, 144 S. Ct. 386
(2023).
Petitioner filed a state application for writ of habeas corpus that the
CCA denied without written order on the findings of the trial court and
on the CCA’s own independent review of the record. ECF No. 14-73.
GROUNDS OF THE PETITION
Petitioner urges three grounds in support of his petition:
(1) 	He 	received 	ineffective 	assistance 	because 	his 	counsel
represented him despite an actual conflict of interest, failed to challenge
the indictment, and failed to present mitigating evidence during the
punishment phase of the trial.
(2) The State violated his right to be free from unreasonable search
and seizure.
(3) There was insufficient evidence to support his convictions.
ECF No. 1; ECF No. 13.
APPLICABLE LEGAL STANDARDS
A. 	Section 2254
A writ of habeas corpus on behalf of a person in custody under a state
court judgment shall not be granted with respect to any claim that was
adjudicated 	on 	the 	merits 	in 	state 	court 	proceedings 	unless 	the
petitioner shows that the prior adjudication:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established federal
law, as determined by the Supreme Court of the United
States; or
(2) 	resulted 	in 	a 	decision 	that 	was 	based 	on 	an
unreasonable determination of the facts in light of the
evidence presented in the State court proceedings.
28 U.S.C. § 2254(d). A decision is contrary to clearly established federal
law if the state court arrives at a conclusion opposite to that reached by
the United States Supreme Court on a question of law or if the state
court decides a case differently than the Supreme Court has on a set of
materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362,
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405–06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir.
2000). “A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.
86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)).
A determination of a factual issue made by a state court is presumed
to be correct. 28 U.S.C. § 2254(e)(1). The presumption of correctness
applies to both express and implied factual findings. Young v. Dretke,
356 F.3d 616, 629 (5th Cir. 2004); Valdez v. Cockrell, 274 F.3d 941, 948
n.11 (5th Cir. 2001). Absent express findings, a federal court may infer
fact findings consistent with the state court’s disposition. Marshall v.
Lonberger, 459 U.S. 422, 433 (1983). Thus, when the Court of Criminal
Appeals of Texas denies relief without written order, such ruling is an
adjudication on the merits that is entitled to this presumption. Ex parte
Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). The petitioner has
the burden of rebutting the presumption of correctness by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); Hill, 210 F.3d at 486.
In making its review, the Court is limited to the record that was
before the state court. 28 U.S.C. § 2254(d)(2); Cullen v. Pinholster, 563
U.S. 170, 181 (2011).
B. 	Ineffective Assistance of Counsel
To 	prevail 	on 	a 	claim 	of 	ineffective 	assistance 	of 	counsel, 	the
petitioner must show that (1) counsel’s performance fell below an
objective standard of reasonableness and (2) there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different. Strickland v. Washington, 466
U.S. 668, 688, 694 (1984). “[A] court need not determine whether
counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.” Id., 466
U.S. at 697. “The likelihood of a different result must be substantial, not
just conceivable,” Harrington, 562 U.S. at 112, and a petitioner must
prove that counsel’s errors “so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced
a just result.” Cullen, 563 U.S. at 189 (quoting Strickland, 466 U.S. at
686). Judicial scrutiny of this type of claim must be highly deferential
and 	the 	petitioner must 	overcome 	a 	strong 	presumption 	that his
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counsel’s conduct falls within the wide range of reasonable professional
assistance. Strickland, 466 U.S. at 689.
Where the state court adjudicated the ineffective assistance claims
on the merits, this Court must review a petitioner’s claims under the
“doubly deferential” standards of both Strickland and § 2254(d). Cullen,
563 U.S. at 190. In such cases, the “pivotal question” for the Court is not
“whether 	defense 	counsel’s 	performance 	fell 	below 	Strickland’s
standard”; it is “whether the state court’s application of the Strickland
standard was unreasonable.” Harrington, 562 U.S. at 101. In other
words, the Court must afford “both the state court and the defense
attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013)
(quoting Cullen, 563 U.S. at 190); Knowles v. Mirzayance, 556 U.S. 111,
123 (2009). “Unreasonable” is a substantially higher threshold than
“incorrect.” Wooten v. Thaler, 598 F.3d 215, 222 (5th Cir. 2010).
Simply making conclusory allegations of deficient performance and
prejudice is not sufficient to meet the Strickland test. Miller v. Johnson,
200 F.3d 274, 282 (5th Cir. 2000).
ANALYSIS
Petitioner first alleges that counsel suffered from an actual conflict
of interest but he fails to identify any facts to support his allegation.
ECF No. 1 at 6–8.1 As best the Court can tell, he asserts that a conflict
existed 	by 	virtue 	of 	counsel “being an officer of the 	court and a
government agent.” Id. at 7.
To show a Sixth Amendment violation, Petitioner had to show that
his attorney acted under an actual conflict and that such conflict
adversely affected his representation. Perillo v. Johnson, 79 F.3d 441,
447 (5th Cir. 1996). A theoretical or speculative conflict is not enough;
Petitioner must show that counsel was required to make a choice
advancing 	his 	own 	interests 	or 	the 	interests 	of 	another client to
Petitioner’s detriment. United States v. Garcia-Jasso, 472 F.3d 239, 243
(5th Cir. 2006); Beets v. Scott, 65 F.3d 1258, 1277 (5th Cir. 1995) (en
banc). 	If 	counsel 	did 	not 	make 	a 	choice, 	the 	conflict 	remains
hypothetical. Garcia-Jasso, 472 F.3d at 243.
1 The page number references to the petition are to “Page __ of 22” reflected at the top
right portion of the document on the Court’s electronic filing system.
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Petitioner raised this issue before the state habeas court, which
found and concluded that he failed to establish any conflict of interest or
conspiracy with the State. EF No. 14-71 at 160–61, 167. His allegations
here are wholly conclusory and unsupported and fail to raise a proper
ground for relief. Miller, 200 F.3d at 282; Ross v. Estelle, 694 F.2d 1008,
1012 (5th Cir. 1983). Moreover, Petitioner has made no attempt to rebut
the presumption of the correctness of the state court’s findings in this
regard. He has not met his burden to proceed here. Shinn v. Kayer, 592
U.S. 111, 118 (2020) (petitioner must show that the state court’s decision
is so obviously wrong that its error lies beyond any possibility for
fairminded disagreement).
Petitioner next alleges that counsel rendered ineffective assistance
in failing to file motions to quash the indictment and for an examining
trial. ECF No. 1 at 7. Again, the allegations are wholly conclusory and
unsupported. 	And, 	Petitioner 	has 	made 	no 	attempt 	to 	rebut 	the
presumption of correctness of the state court’s findings in this regard.
ECF No. 14-71 at 161, 167–68. In any event, Petitioner would not have
been entitled to an examining trial. Texas v. Reimer, 678 F.2d 1232, 1233
(5th Cir. 1982) (citing Klechka v. State, 429 S.W.2d 900, 901 (Tex. Crim.
App. 	1968) 	(return 	of 	an 	indictment 	terminates 	the 	right 	to 	an
examining trial)). Nor has he shown that a motion to quash the
indictment would have made any difference in the outcome of the case.
See, e.g., Brown v. Cain, 337 F.3d 546, 549–50 (5th Cir. 2003) (no
ineffective 	assistance 	where 	effect 	of 	successful 	motion 	to 	quash
indictment would have been for the state to reindict the defendant on a
charge with a more severe punishment). Counsel cannot have been
ineffective as a result of refusal to file frivolous motions. United States
v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999).
Petitioner contends that counsel rendered ineffective assistance in
failing to present mitigating evidence at the punishment phase of the
trial. ECF No. 1 at 7–8. He refers specifically to the failure to call Dr.
Daniel R. Altman to testify on his behalf. Id. at 7. As the State points
out, the trial court made extensive findings regarding counsel’s decision
not to call Dr. Altman to testify. ECF No. 14-71 at 162–63, and concluded
that Petitioner had failed to establish ineffective assistance of counsel
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in this regard. Id. at 168. Clearly, the decision was strategic based on
the facts of the case. Petitioner has made no attempt to rebut the
correctness of the findings.
Finally, under his 	first ground, Petitioner alleges 	that counsel
showed the jury a harmful slide during voir dire of Petitioner’s previous
conviction, citing 2 RR 22–25. ECF No. 1 at 8. He provides no further
support 	for 	this 	contention. 	The 	trial 	court 	found 	that 	no 	such
presentation had been made. ECF No. 14-71 at 163. The record citation
Petitioner provides does not support the contention. ECF No. 14-3 at 22–
25. Petitioner has failed to rebut the presumption of correctness of the
finding.
In his second ground, Petitioner alleges that his Fourth Amendment
right was violated when his cellphone was searched without warrant.
ECF No. 1 at 10–11. The record reflects that the State provided an
opportunity for full and fair litigation of this claim; accordingly, relief
may not be granted here. Stone v. Powell, 428 U.S. 465, 494 (1976);
Janecka v. Cockrell, 301 F.3d 316, 320–21 (5th Cir. 2002). To the extent
Petitioner alleges that counsel rendered ineffective assistance in this
regard, he has not overcome the presumption of correctness of the trial
court’s findings that, among other things, the search of the cellphone
was performed pursuant to a search warrant and counsel’s performance
was not deficient. ECF No. 14-71 at 163–64.
In his third ground, Petitioner alleges that there was no evidence to
support his convictions. ECF No. 1 at 12–13. He vaguely refers to his
counsel’s “failure to subject the state’s case to adversarial testing” and
“failure to investigate.” Id. at 12. His allegations are wholly conclusory
and unsupported and fail to state a claim. Miller, 200 F.3d at 282.
When insufficiency is raised, the Court considers whether, viewing
the evidence “in the light most favorable to the prosecution, any rational
trier of fact could have found the existence of facts necessary to establish
the essential elements of the offense beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). All credibility choices and
conflicting inferences are resolved in favor of the verdict. United States
v. Cyprian, 197 F.3d 736, 740 (5th Cir. 1999); United States v. Nguyen,
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28 F.3d 477, 480 (5th Cir. 1994). Petitioner challenged the sufficiency of
the evidence on direct appeal and his convictions were affirmed. King,
650 S.W.3d at 257–65. He has not shown, much less attempted to show,
that 	the 	denial 	of 	this 	claim 	was 	contrary 	to, 	or 	involved 	an
unreasonable 	application 	of, 	clearly 	established 	federal 	law, 	as
determined by the Supreme Court or was based on an unreasonable
determination of the facts in light of the evidence presented. 28 U.S.C.
§ 2254(d).
CONCLUSION
For the reasons discussed herein, all relief sought by Petitioner is
DENIED.
Further, for the reasons discussed herein, pursuant to 28 U.S.C.
§ 2553(c), a certificate of appealability is DENIED.
SO ORDERED on this 3rd day of April 2026.
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
REGINALEA KEMP ,
Plaintiff,
v. 	No. 4:23-cv-00841-P
REGIONS BANK ET AL .,
Defendants.
ORDER
Before the Court is Plaintiff’s Unopposed Motion for Leave to File
Second Amended Complaint. ECF No. 18. Having considered the Motion
and applicable docket entries, the Court GRANTS the Motion.
SO ORDERED on this 18th day of September 2023.
______________________________________________
Mark T. Pittman
UNITED STATES DISTRICT JUDGE
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